Antonin Scalia Stephen Breyer Above the Law SCOTUS Supreme Court Justices.JPG

We agree with Andrew Sullivan: Dahlia Lithwick did a superb job in her write-up of the Scalia-Breyer debate, which took place Tuesday night at the Capital Hilton. We attended as guests of the ACS, whom we thank for their hospitality.
For our fourth and final post about the evening — prior posts here, here, and here — we’ll quote liberally from Lithwick’s great Slate piece, with commentary of our own appended and interspersed.
It all appears after the jump.


This was what Andrew Sullivan excerpted as the money quote from Lithwick’s piece:

[W]hen you’re sitting close enough to see that Supreme Court justices actually wear socks, their differences are stark. From the moment he takes the stage, Justice Breyer looks outward. He shifts in his seat constantly to catch the eye of the moderator, ABC’s Jan Crawford Greenburg, and then to make eye contact with individual audience members. When Scalia speaks, Breyer nods and bobs. Justice Scalia turns inward, folding up his arms and gazing raptly into the middle distance. As Breyer speaks, Scalia first smirks, then giggles, then sort of erupts with a rebuttal, usually aimed right at the tips of his shoes. Where Breyer is ever striving to connect to the world, Scalia is happiest in his head.

All very accurate. And Justice Scalia’s “folded arms” pose is exactly the same as the one he assumed in last month’s televised debate with Nadine Strossen.

Scalia is charming and–as ever–riotously funny. For each time Breyer says his own constitutional approach is “complicated” or “hard,” Scalia retorts that his is “easy as pie” and a “piece of cake.” And if this debate mirrors a marketplace of ideas, Breyer will make the sale through the earnest personal connection of a Wal-Mart greeter, while Scalia opts for the aloof certainty of the Tiffany’s salesman: “Sure, you can buy some other, cheaper constitutional theory, but really. Ew.”

Brilliant, funny, and so, so true. There’s a cleanliness and elegance to Justice Scalia’s jurisprudence, and it’s offered with an alluring hauteur. Tiffany’s is an apt comparison.

Scalia bristles when Crawford Greenburg quotes back a line about the “living Constitution” being “idiotic.” “You are misquoting me,” he says. “I was describing the argument in favor of the living Constitution–that it’s a living organism that must grow or become brittle and snap.”

Half of the room — the conservative half — laughs as Justice Scalia says this. An interesting crowd. Maybe 60-40 Federalist Society to ACS; but the Fed Soc crew is more expressive.
AS: “The Constitution is not a living organism, it’s a legal text. It’s idiotic [to say it's the former].”
This next line cracks people up: “I analogize it to those statements from your broker, when he tells you the Dow is ‘resting for an assault on the 12,000 mark.’ Resting? Like it’s hanging out at some base camp or something?”
SGB (with appealing dryness): “I admit it’s not living, in the manner of a rhinoceros…”
(Glad we can agree on that much.)
To be sure, Justice Scalia’s ridicule of the “living Constitution” — living, breathing, Stairmastering — was a bit glib. A good point made in an email to us by our law school classmate Andrew Tauber, of Mayer Brown (and Legal Eagle Wedding Watch):

One comment in particular by Scalia seemed wrong to me: In arguing against the notion of a living constitution, he said that no one would ever have voted for a bill of rights that said “judges will fill the empty vessel” of ‘due process’. But, vague terms, such as ‘due process,’ are often used in proposed legislation precisely to garner legislative majorities when, due to disagreements over specifics, no more particularized language could pass. Thus, contrary to Scalia’s view, the legislature — in effect delaying the disagreement over specifics for another day and another forum — often anticipates that judges will give content to under-defined statutory or constitutional terms.

Okay, back to Lithwick:

[Justice Scalia] observes that there is a difference between applying the Constitution to a changing world–to television and the Internet, say–and to “morphing” old ideas to mean precisely their opposite. How could a Constitution that clearly allowed for the death penalty now explicitly prohibit it? “That’s the living Constitution I am talking about, and it’s the one I wish would die.”

SGB (deadpan): “We were making a little more progress earlier on.”
AS: “You have a lot more hope for this thing than I do!”
At this point, we’re struck by how effective a comedy team they are. SGB is like the straight man to AS’s funny man — although every now and then, SGB busts out with something funny of his own.
A classic pairing. Justice Breyer is thin, idealistic, and patrician, a la “Don Quijote.” Justice Scalia is stout, salty, and cynical, a la “Sancho Panza.” We’re reminded of the Ninomania motto: “Keep your ‘Yankee From Olympus’ — Give me Sancho Panza from New Jersey!”
Discussion turns to the role of history in deciding cases:
SGB: “I don’t often go into history in deciding cases.”
AS: “Try it, you’ll like it!” [Cf. Life cereal commercials.]
Then they start talking about the Court’s religion cases. Justice Breyer — who earlier this week patronizingly explained to Solicitor General Clement that the end of segregation was a good thing — submits another entry in the “Let’s State the Obvious” contest:

The seventeenth century was JUST TERRIBLE! People REALLY KILLING each other! For RELIGIOUS reasons!

Justice Breyer, with all due respect: You need to get off the elementary-school lecture circuit. Fast.
From Lithwick, a description of a fun digression by Justice Scalia:

Scalia [launches] into a delicious impression of the Frenchman who described to him the difference between France and America: “Justice Scalia,” he minces, “France is a country with 300 cheeses and two religions. The United States is a country with two cheeses and 300 religions.”

Breyer cracks up: “But why does the Frenchman have an Italian accent?”

The laughter here “stops the show,” as they say on Broadway. After it dies down, Justice Scalia pipes up defensively: “At least I tried!”
Another funny exchange:
SGB: “In logic classes, they have an abbreviation, CDNF: conclusion does not follow.”
AS (dismissively): “I never took a logic class.”
SGB: “Ah, we’re making progress!”
(We are reminded of how funny Justice Breyer can be.)

Both justices agree the words activist judge are basically useless. “An insult,” says Breyer. A “conclusory label,” says Scalia. Asked if he ever calls Breyer an activist, Scalia quips: “I would never call him that to his face.”

Justice Scalia, who has a Wildean gift for aphorism, quips that the term “activist judge” is used to refer to “courts doing whatever you don’t like.”
Justice Breyer tries to make the point that the Court, by issuing such detailed written opinions, is a relatively transparent institution: “We’re not the CIA over at the Supreme Court. We’re an open organization!”
We see his general point. But given the way the Court is shrouded in secrecy, speaking for the most part ONLY through its written opinions, and with the clerks sworn to secrecy, it may be an overstatement to say the Court is an “open organization.”
They talk about Chief Justice Roberts’s recent statement — in an interview with Jan Crawford Greenburg, so she was pimping her prior work — that he’d like to see more unanimous decisions. Justice Scalia: “Lotsa luck!”

Both justices agree that Chief Justice John Roberts’ affection for narrower, unanimous cases is probably mistaken: says Scalia, “If you wanted to decide almost nothing at all and decide the case on such a narrow ground that it will be of very little use to the bar in the future, you can always get nine votes.” He notes that it helps the bar not at all to have cases decided on narrow technicalities. Breyer agrees that you don’t want nine votes just to have nine votes.

Scalia also disputes Roberts’ distaste for “boldness” in opinion writing: “The law doesn’t have to be dull,” he grins, explaining that he writes his dissents for the case books. “Originalism used to be an orthodoxy,” he sighs. “Now, there are only two certified originalists on the court, myself and Justice Thomas.” He waves his arm hopelessly at the 900 assembled lawyers. “I don’t hope to persuade you. It’s too late for you guys.” But he says he’s still hoping to win over the law students.

Around this time, the air conditioning shuts off, and the room gets eerily quiet. The turning of the pages in our notebook becomes audible. Spooky.
SGB talks about how, when he circulates an opinion, he can never be sure how the voting will go. He notes that as votes come in, colleagues ask for certain changes, and he’s generally open to them. But “once I get the five votes, I’m still amenable to change — just not as much!”
AS, on his own vigorous dissents: “What is the purpose of dissenting on the Supreme Court? I’m doing it for the educational value. Because when law professors put together casebooks, they need two sides!”

Here is where Breyer reveals just how much these men truly differ. Because, says he, he writes his dissents to persuade. His cell phone erupts here. He describes how after finishing each dissent, he proclaims to his wife that “this time it will really persuade them.” He laughs, explaining that over time, that always changes to a hope that he’ll persuade them and then to regret that it didn’t. Scalia offers the view that nobody at Supreme Court case conferences is persuaded by the other justices. Breyer thinks his colleagues’ minds can be changed with good arguments.

A final summary of the two justices’ worldviews, from Lithwick:

[T]here are miles and miles separating Scalia’s elegantly simple interpretive worldview from Breyer’s murkier, more hopeful one. Stephen Breyer’s jurisprudential Grover–sweet and optimistic and eager-to-please–is working the room, confident he’ll sell us on his constitutional theory, one lawyer at a time. And Antonin Scalia’s constitutional Oscar the Grouch–frustrated and misunderstood, yet somehow more lovable for it–doesn’t even try to close the deal. He doesn’t need us to vindicate him. He’s confident history will do that.

Great, fabulous stuff.
One random quibble: Jan Crawford Greenburg did a generally good job as moderator. But she didn’t pose enough of the audience questions to the justices, which led to the discussion getting repetitive near the end, instead of jumping around in the interesting way that Q-and-A sessions often do.
There were no “live” questioners — which was understandable, since it was being recorded for television, and since sometimes having live questioning leads to lunacy. Instead, audience members were given index cards to write their questions on, and the cards were passed up to Greenburg.
Greenburg probably used about two audience questions before going back to her own inquiries. In the coat check line after the event, people were grousing about this. Many of us had submitted written questions, and hardly any were used, so the event wasn’t as participatory as it could (or should) have been.
On the whole, though, it was an entertaining and enlightening evening. Thanks to our hosts, the American Constitution Society, and the ACS’s co-sponsor, the Federalist Society. And thanks for sharing, Justices Scalia and Breyer!
Justice Grover Versus Justice Oscar [Slate via Andrew Sullivan]
Justices Scalia and Breyer: Little in Common, Much to Debate [ABC News]
US Supreme Court justices debate their views of Constitution [Associated Press]
Justices Breyer and Scalia Converse on the Constitution (video) [American Constitution Society]
Case of the Dwindling Docket Mystifies the Supreme Court [New York Times]
Earlier: The Nino-Breyer Smackdown (Part 3)
The Nino-Breyer Smackdown (Part 2): A Photo Essay
The Nino-Breyer Smackdown (Part 1)


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